Resolution of cases or disputes by way of negotiation, mediation and arbitration – and variations on these themes – is becoming popular day by day in Bangladesh. This increases the need for education on Alternative Dispute Resolution (ADR) in the country.
Making students familiar to this subject would increase awareness of ADR and to facilitate the development of ADR skills within the law school community. Alternative Dispute Resolution (ADR) is assumed to be in practice from the date unmemorable in this part of the world.
In the absence of any historical evidence it is difficult to specify the period during which mediation of disputes started among the people of this region. ADR is central to legal practice and should be taught to law students in order to prepare them for that practice.
The need to integrate has long been argued by well-known practitioners and theorists in ADR. The need to include ADR in the legal curriculum has long been recognized and many commentators have advocated for law schools to systematically include the range of non-curial options, particularly negotiation, in the education of law students.
Riskin and Westbrook argued for integration where ADR options are taught as part of substantive law subjects and obtained various grants to introduce this pedagogical approach in a range of United States law programs. More recently, advocates for the integrated approach still argue strongly that first year law programs should integrate ADR into their teaching.
10 Reasons why ADR must be a mandatory subject in the law degree:
– As more and more corporate bodies are resorting to ADR, there is still a shortage of Arbitrators or Mediators in Bangladesh.
– More ADR practitioners are needed to due to the backlog of cases in the courts.
– Current teaching does not reflect legal practice.
-Participation in ADR processes are mandatory under certain legislation.
-Legal practitioners have a duty to advise clients about ADR processes.
– ADR instruction allows students to appreciate the importance of emotion (and emotional intelligence) in the resolution of disputes
-Lawyers need to understand about the nature and theory of conflict.
-Teaching ADR supports law student psychological well-being
-ADR instruction can help students to develop a positive professional identity.
– Law students are demanding ADR knowledge and skills
Currently, there are a few law schools in Bangladesh which has ADR as a course module. The subject is mostly taught in the first semester of a 4 year Honors programme. By the time a student graduates, he would forget what he studied on his first days as a law student. What needs to be introduced is a standalone course which is longer in duration.
ADR as a Post Graduate Diploma or Master of Laws subject?
There are hundreds of Universities in the USA and Europe which provides ADR as an LLM subject. There are standalone majors for Diploma as well. Some of the reputed institutions in the USA are Harvard Law School Program on Negotiation, University of Colorado Law Mediation Program, University of Tennessee Law School Mediation and University of Texas School of Law Center for Public Policy Dispute Resolution etc.
In Europe, there is Stockholm University which provides an LLM on International Commercial Arbitration, King’s College London provides an LLM on International Dispute Resolution.
In Bangladesh, the Bangladesh International Arbitration Centre (BIAC) had organized 200+ workshops on ADR. But the number is very less compared to International institutions. More and more universities abroad are encouraging students to apply for higher education on ADR with scholarships.
Trainings and Workshops are helpful but inadequate due to their duration. A one day or a week is not enough for a student to get an in depth idea on ADR. A fairly longer time is needed to prepare professionals. Hence, Six months long Diplomas and one year specialized Masters Courses must be introduced in the law department of public and private universities.
A Post graduate diploma shall consist of all the methods of ADR as individual courses, while the LL.M would have two 6 month semesters. The first semester would give an overall idea of all the ADR methods and the last one would allow the student to pick one of the ADR methods as a major concentration.
Since there are very few specialized LLM programmes in Bangladesh, such a subject will surely grab attention of enthusiastic learners. The faculty may organize seminars, workshops and even mock arbitration or mediation sessions in order to give the students an idea of how the process works in real time.
Like many other countries, the legal system in Bangladesh is formal, complex, urban-based, time consuming and expensive. This leaves many Bangladeshis, especially the poor, illiterate or disadvantaged living in rural areas, unable to enforce their rights through the formal justice system.
This has encouraged lawyers to prefer ADR methods as a part of their profession. Non-adversarial practices allow lawyers to cast off the shackles of adversarial behaviour, providing them with an opportunity to reinvent themselves (and their image) as more caring and helpful.
Arbitration in Bangladesh is governed by the Arbitration Act, 2001. The National Board of Revenue (NBR) also introduced ADR in their Income Tax Alternative Dispute Resolution (Procedure) Rules, 2012.
Mediation under the Code of Civil Procedure 1908 is a flexible, informal, non-binding, confidential, non-adversarial and consensual dispute resolution process in which a third party mediator shall facilitate a compromise to parties’ disputes. On the other hand, The Madaripur Model of Mediation by the Madaripur Legal Aid Association shows how community based mediation is in force in rural parts of the country.
The use of Arbitration is becoming increasingly popular in the urbanized part of the country. According to the statistics of Bangladesh International Arbitration Centre (BIAC), more and more commercial and business institutions are resorting to Arbitration rather than going to the court for their dispute resolution. Many existing contracts demand arbitration. Agreeing to arbitrate disputes that may arise in broader contractual agreements is the primary route into the process. Hence, it is the demand of time that ADR education is enforced to prepare experts for the future.